639 F.2d 1100 (5th Cir. 1981), 79-2154, Save the Bay, Inc. v. United States Army

Docket Nº:79-2154.
Citation:639 F.2d 1100
Party Name:SAVE THE BAY, INC., Plaintiff-Appellant, v. The UNITED STATES ARMY et al., Defendants-Appellees.
Case Date:February 23, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1100

639 F.2d 1100 (5th Cir. 1981)

SAVE THE BAY, INC., Plaintiff-Appellant,


The UNITED STATES ARMY et al., Defendants-Appellees.

No. 79-2154.

United States Court of Appeals, Fifth Circuit

February 23, 1981

Page 1101

Robert W. Smith, Biloxi, Miss., Earl L. Dunham, Ocean Springs, Miss., for plaintiff-appellant.

Robert Hauberg, U. S. Atty., L. K. Travis, Asst. U. S. Atty., Jackson, Miss., for U. S. Army.

David Sebree, Environment Div., Legal Dept., E. I. du Pont de Nemours & Co., Wilmington, Del., Ben H. Stone, Gulfport, Miss., for E. I. du Pont de Nemours & Co. and Southern Miss. Transportation Co.

Boyce Holleman, Stanford E. Morse, Jr., Gulfport, Miss., for Harrison County Development Commission.

Nancy B. Firestone, James W. Moorman, Dirk Snel, Land and Natural Resources Div., Washington, D. C., for EPA.

Appeal from the United States District Court for the Southern District of Mississippi.

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.


Save The Bay, Inc., a Mississippi non-profit corporation, filed suit for damages and for declaratory and injunctive relief against the United States, the United States Army, the United States Coast Guard, the United States Corps of Engineers, General J. W. Morris and Colonel Charles Blalock of the Corps of Engineers, the Interstate Commerce Commission, E. I. Du Pont de Nemours, a private corporation, and its wholly owned subsidiary, the Southern Mississippi Transportation Company, and the Harrison County, Mississippi Board of Supervisors and its agency the Harrison County Development Commission. Plaintiff complains of violations of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., particularly § 102 (42 U.S.C. § 4332) thereof, as a consequence of the building of a railroad project, including bridges over Turkey Creek, Delisle Bayou and Wolf River, in Harrison County, Mississippi.

Subsequent to the filing of the original complaint, plaintiff filed a Motion for Temporary Restraining Order and Preliminary Injunction. Thereafter plaintiff was granted leave to file an amended complaint in which it prayed for: (1) damages of $50,000; (2) a declaratory judgment that defendants have failed to comply with the provisions of NEPA in that the Final Environmental Impact Statement (EIS) filed reflects the need for further environmental study and another EIS should be prepared; and (3) injunctive relief prohibiting defendants from proceeding with construction of the railroad project, particularly the crossings identified above.

After substantial discovery and pre-trial motions and proceedings, the matter came before the court on defendant's motions to

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dismiss and plaintiff's motion for injunctive relief. The district court entered a memorandum opinion. Certain of the defendants requested a reconsideration. After considering argument...

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